No, You Don’t Have to Talk

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Phil Puccio

When I recently defended my doctor-client in testimony alleging medical malpractice, the plaintiff’s attorney began asking questions outside the lines. I protested and he immediately replied that I didn’t know the rules of evidence and that his questions were valid. He claimed certain witness privileges apply only in criminal cases. I stuck to my objections and my doctor followed my example and did not answer the questions. But a good reminder of the testimony privileges recognized under the Nebraska Rules of Evidence never hurts:

  • 27-501 You cannot refuse to be a witness, refuse to disclose a matter, refuse to produce an object or writing, or prevent another from witnessing or disclosing a thing or writing.
  • 27-503 Confidential communications between attorney and client are
    privileged. These are not confidential messages
    intended to be passed on to third parties for the promotion of
    professional legal services for the client. The privilege does not apply if the legal services sought are for the purpose of assisting, committing or planning a criminal offense or fraud, relate to a deceased client, are relevant to a breach of duty by the lawyer, deal with a legal certification of a document or if the communication is relevant to a common interest of two customers.
  • 27-504 This is commonly referred to as doctor-patient privilege. It is actually a health-patient privilege and includes all medical professionals, consultants, dentists, etc. To be applicable, the patient must be examined, questioned, diagnosed, or treated by the health care provider in a physical, mental, or emotional manner, or physical or emotional states. The healthcare provider must usually be licensed. The communication is confidential unless intended to be disclosed to any third party unrelated to the diagnosis and treatment of the patient. The privilege does not apply in proceedings in which the patient has pleaded health as an element of the claim or defense, or in a criminal proceeding involving juveniles, the disabled, or the incapacitated. Finally, there is no privilege regarding legal proceedings related to illegally attempting to obtain controlled substances. Of course, this provision must be read in conjunction with HIPAA.
  • 27-505 This is the husband-wife privilege essentially pointing to this
    Neither a husband nor a wife may be questioned or forced to testify when confidential communications are being conducted between them
    She. Exceptions are of course causes of action in connection with
    Marital and/or family problems.
  • 27-506 Communications to ministers are privileged when that person
    is reasonably part of a religious organization and the notice is not intended for further disclosure except to the clergy.
  • 27-507 No one can be compelled to disclose their vote in a political election unless the vote was cast illegally.
  • 27-508 A person may claim the privilege of withholding disclosure of trade
    Secrets that can be made up by him or his employer but cannot be kept secret
    fraud. In the event of disclosure, a protective order is usually issued.
  • 27-509 The government has the privilege of withholding testimony and
    Prevent officials from making statements. Officially
    Communications are confidential if the public interest would be adversely affected by disclosure.
  • 27-510 Government agencies may refuse to reveal the identity of a
    Person who is a law enforcement or legislature informant

Incidentally, 27-513 points out that no attorney or judge may testify to the jury when a person claims a privilege, and no inference may be drawn therefrom. Privilege claims must be asserted outside the presence of the jury. Appropriate jury instructions may be requested.

The post “No, You Don’t Have to Talk” first appeared on Lamson Dugan & Murray LLP.

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